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Latest RCEP IP Chapter leak reveals more cause for worry


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“Sunshine is the best Disinfectant”. Perhaps time to bring this out from under the covers?

Last night, Knowledge Ecology International (KEI) managed to leak yet another updated version of the IP chapter of the secretive RCEP negotiations. The October 2015 version is now available on their site here. We had written on an earlier (June, 2015) draft that KEI had leaked here.

As per Wikipedia, this is the 12th round of negotiations, and one more round of negotiation has happened (Feb, 2016) since this Oct 2015 draft. There are an expected 14 rounds scheduled, with the last one in September, 2016. An interesting aspect of this leaked draft is that since it contains comments from the participating countries, giving us a good sense of what each country is pushing for, or what it is opposing [which also makes it a great read for those who want to understand better how the negotiation process works]. Reproducing some comments from KEI on the draft so far:

“The RCEP is a massive proposed trade agreement, some see as a rival or alternative to the TPP, which currently involves the ten member states of the Association of Southeast Asian Nations (ASEAN): Brunei, Burma (Myanmar), Cambodia, Indonesia, Laos, Malaysia, the Philippines, Singapore, Thailand, Vietnam, plus six other countries: Australia, China, India, Japan, South Korea and New Zealand.”

[For some background on the TPP, see our posts here and here]

Statement by James Love, KEI Director (emphasis, my own):

“The RCEP will be a massive trade agreement and the content of the IP Chapter is important. It will bind India and China, two countries left out of the TPP. Japan and Korea are trying to push many of the worst ideas from ACTA, TPP and other trade agreements into the RCEP IP Chapter. Some of the issues that negotiators did not understand in the TPP, such as the damages provisions, are also lurking in this text, creating risks that negotiators will do worse than they think, because the secrecy of the negotiations insulates the negotiators from timely feedback on technically complex issues. Japan and Korea are pushing for test data monopolies, without the same safeguards available to patent monopolies. There are proposals for patent extensions, restrictive rules on exceptions to copyright, and dozens of other anti-consumer measures, illustrating the power of right-holder groups to use secret trade negotiations to limit democratic decisions that impact access to knowledge, the freedom to innovate and the right to health, in negative ways.”

I haven’t had time to go over it in detail yet, but it looks like India has been advocating to prevent the agreement from becoming a TRIPS plus agreement, and has been arguing for flexibilities in implementing it. From my understanding of the document, from Article 1.7, it looks like India has had some successes such as getting a separate paragraph on Para 6 of the Doha Declaration (importance of TRIPS and Public Health). India’s also proposed its own section on”Genetic Resources, Traditional Knowledge and Folklore”, separate from proposals from any other country. (found on page 31-32). I haven’t read enough to know India’s stance on all matters covered here though.

It’s also very clear from the proposed/opposed provisions that Japan, Korea and even Australia to an extent, are pushing for very stringent IPR norms. The folks over at Software Freedom Law Centre (SFLC) have also informed us that they’ve learnt that a recent RCEP draft contains a clause that will result in the grant of software patents (SFLC are also taking up with our government, to oppose this). I haven’t yet seen this provision in the October 2015 draft – I might not have come across it yet, or its also very well possible that this has been introduced in the February 2016 round of negotiations. If the latter is true, then its even more worrying, as this means that more stringent norms are still being pushed into the draft!

The next, and supposedly penultimate round of negotiations will be happening in a couple of days – from April 23rd – April 29th, 2016, at Perth, Australia. The lack of transparency on these fast-closing negotiations is very worrying, and it appears we’re going to have to continue relying on leaks to get any of this information out to the public. Readers who have more insight into the current draft, or current negotiations, please do write in.

 

Swaraj Paul Barooah

Swaraj Paul Barooah

Follow @swarajpb Swaraj has a deep interest in IP, Innovation and Information policy, especially when they involve issues relating to Access to Knowledge, Innovation incentive mechanisms, Digital Freedoms, Open Access, Education, Health and Development. After his BA, LLB (hons) from Nalsar Univ of Law, Hyderabad, he went on to do his LLM from UC Berkeley in 2010. He is now pursuing his J.S.D. degree from UC Berkeley where he is focusing on Drug Innovation Policy and Access to Medicines. Aside from SpicyIP, he is also engaged as a consultant on various IP matters, and is a visiting faculty member at Nalsar Univ of Law. He is also in the process of starting up a New Delhi based "IP, Innovation & Information Policy" focused think-tank.

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